People v. Ebron

• Decision Date: 29 March 1982
• Citation: 448 N.Y.S.2d 514,87 A.D.2d 653
• Parties: The PEOPLE, etc., Respondent-Appellant, v. Ricardo EBRON, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 514

448 N.Y.S.2d 514

87 A.D.2d 653

The PEOPLE, etc., Respondent-Appellant, v. Ricardo EBRON, Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

March 29, 1982.

William E. Hellerstein, New York City (Darren O'Connor, New Rochelle, of counsel), for appellant-respondent.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Lucille DiBello, Brooklyn, and Julie Rosenbaum, of counsel), for respondent-appellant.

Before DAMIANI, J. P., and LAZER, MANGANO and GIBBONS, JJ.

MEMORANDUM BY THE COURT.

Cross appeals by (1) defendant from a judgment of the Supreme Court, Kings County, rendered January 28, 1981, convicting him of robbery in the first degree, upon his plea of guilty, and sentencing him as a first felony offender, and (2) the People from the sentence imposed, on the ground of illegality.

Judgment modified, on the law, by vacating the sentence imposed. As so modified, judgment affirmed, and case remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

Defendant's statement, at the time he entered his plea of guilty, that he used a "toy weapon" to commit the crime, casts doubt on the substantive sufficiency of his plea by suggesting the existence of an affirmative defense under subdivision 4 of section 160.15 of the Penal Law. Under the circumstances presented here, the court erred in failing to then point out to the defendant, as required under the guidelines of People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330, the availability of such affirmative defense, and that if established, it could result in, at most, a conviction for robbery in the second degree and thereby subject him to a lesser sentence than could be imposed for the crime of robbery in the first degree.

The defendant, however, waived his right on appeal to assert this deficiency in his plea, by reason of his failure to move to withdraw his plea at Criminal Term (see People v. Warren, 47 N.Y.2d 740, 417 N.Y.S.2d 251, 390 N.E.2d 1175; People v. Pascale, 48 N.Y.2d 997, 425 N.Y.S.2d 547, 401 N.E.2d 904). The error has not been preserved for review.

A reversal in the interest of justice is not warranted inasmuch as defendant's plea was the product of plea bargaining, freely entered into by defendant with the advice of counsel, under which the plea and sentence were in full satisfaction of a seven-count indictment, charging him with robbery in the first degree (two counts), robbery in the second degree, grand larceny in the third degree (three counts), and criminal possession of a weapon in the fourth degree, all arising out of robberies committed in the same supermarket on three separate days. The plea enabled defendant to avoid the imposition of a much longer sentence of imprisonment (People v. Mitchell, 78 A.D.2d 608, 609, 432 N.Y.S.2d 183).

With respect to the People's appeal, we find from this record that Criminal Term erred in imposing sentence upon defendant as a first felony offender.

Prior to imposition of sentence, the People filed a second felony offender statement, pursuant to CPL 400.21, charging that he had been previously convicted in the United States District Court for the Eastern District of New York on June 13, 1975, for bank robbery, and that he should, therefore, be sentenced as a second felony offender pursuant to section 70.05 of the Penal Law. Defendant controverted the allegations of the statement contending that his constitutional rights were violated in that the sentencing judge, at the time of his Federal conviction, did not consider a rehabilitation program under the Federal Youth Corrections Act (U.S.Code, tit. 18, §§ 5005-5026), which was then available, in the court's discretion, to defendants between the ages of 22 and 26 sentenced as young adult offenders, pursuant to section 4209 of title 18 of the United States Code (now § 4216). Defendant was 23 years of age at the time he was sentenced in the Federal Court in 1975. The Justice at Criminal Term ordered the People to produce the minutes of the Federal Court sentencing proceedings to ascertain whether such consideration was given prior...